On Friday evening, President Trump announced that he was once again attempting to ban all transgender people from the military.
The new memo was filed in a federal court in Seattle, where one of four different legal challenges to his previous order is playing out. It specifies that anyone ever diagnosed with gender dysphoria is “disqualified” from serving:
Among other things, the policies set forth by the Secretary of Defense
state that transgender persons with a history or diagnosis of gender
dysphoria — individuals who the policies state may require
substantial medical treatment, including medications and surgery —
are disqualified from military service except under certain limited
circumstances.
These conclusions directly contradict what an extensive report found before President Obama first lifted the ban on transgender service in June 2016. The memo does not state what the “certain limited circumstances” would be under which a transgender soldier could continue serving.
The courts’ injunctions should, however, remain in place. A Pentagon official had told the Washington Blade earlier Friday evening, “DOD will still comply with federal court rulings and continue to assess and retain transgender service members.” Were the new order to take effect, it would have immediate repercussions for the many trans soldiers who have served openly since Obama first lifted the ban. It would also impact the several transgender people who have enlisted since the accession ban lifted on January 1.
Lambda Legal, which is representing some of the plaintiffs challenging the original ban, dismissed the new memo as “nothing more than a transparent ruse cobbled together with spittle and duct tape designed solely to try to mask discrimination.”
March 23 was the implementation date originally set by Trump in his order last summer banning transgender people from serving or joining the military. The order also barred the military from funding “sex reassignment surgical procedures for military personnel.”
Those provisions had been enjoined by six different federal courts across the United States, including two appeals courts. As a result, the Trump administration announced in December that it would stop fighting for the ban in the courts and begin accepting transgender recruits.
The original order stated that the complete trans ban would remain in place until the secretaries of Defense and Homeland Security issued a different recommendation, which was due by February 21. Defense Secretary Jim Mattis originally missed that deadline, calling the matter “a complex issue.” Subsequent news reports suggested that he recommended lifting the ban, but his actual report to Trump said the exact opposite. Mattis told Trump that allowing any transgender servicemembers could “undermine readiness, disrupt unit cohesion and impose an unreasonable burden on the military that is not conducive to military effectiveness and lethality.”
Sarah Sanders statement, at 9:22 PM Friday, says banning most trans people from service is about "military effectivess and lethality" – and equality. Argues that now the military can "apply well-established mental and physical health standards" "equally to all individuals." pic.twitter.com/2TjMBqwgqY
— Daniel Dale (@ddale8) March 24, 2018
Friday’s memo states that Trump has officially rescinded the original order, replacing it with this new memo, even though the new order attempts to do exactly the same as the prior one did — exactly what multiple courts have concluded he cannot do. Trump may have watered down other policies like the Muslim ban to cater to the courts, but he appears to be standing firm on this blatantly discriminatory policy.
It’s not immediately clear what impact this will have on the ongoing cases challenging Trump’s previous order — if any. As recently as Thursday, a federal court in Washington was demanding the administration turn over a list of the military experts Trump consulted before tweeting out the ban last summer. The administration refused, citing executive privilege.
Last month, BuzzFeed reported on emails showing that the Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, was surprised by the July announcement made by Trump via Twitter, and that he had not been “consulted” by the president.
An August New York Times report suggested that Tony Perkins, head of the anti-LGBTQ hate group the Family Research Council, may have played a primary role in convincing Trump to implement the ban. It may be the case that the reason the administration refuses to release a list of the military experts it consulted is because there were none.
In preparing the new order, Mattis reportedly consulted with medical experts, but the American Medical Association favors lifting the ban. It remains to be seen who these experts are and what biases they might have that are inconsistent with mainstream medical consensuses on affirming transgender people in their identities and protecting them from discrimination.
The Republican National Committee endorsed the ban in February, and several conservative lawmakers have expressed a desire to pass a ban on transgender military service through legislation if courts continue to block Trump’s orders.